Madras High Court
K.Ramasamy vs The Chennai Metropolitan Development on 24 October, 2017
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.10.2017 CORAM : THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MR.JUSTICE N.SESHASAYEE W.P.No.1160/2017 K.Ramasamy ... Petitioner Vs 1 The Chennai Metropolitan Development Authority, rep.by its Member Secretary Thalamuthu Natarajan Maligai, No.1, Gandhi Irwin Road, Egmore, Chennai 600 008. 2 Mrs.M.Gnanam 3 The Commissioner Corporation of Chennai, Rippon Building Chennai 600 003. 4 The Tamil Nadu Housing Board rep.by its Managing Director Nandanam, Chennai 600 035. 5 The State of Tamil Nadu rep.by its Secretary Housing and Urban Development Department, Fort St George Chennai 600 009. ... Respondents Prayer: Writ petition is filed under Article 226 of the Constitution of India for issuance a Writ of mandamus directing to consider the representation dated 28.09.2015 by the petitioner to the 1st respondent to demolish the illegal and unauthorised construction of 2865 sq.ft. of building in the common area put up by the 2nd respondent at No.41/4, adjacent to Old Block No.42/1, LIG Block, Vaigai Colony, 11th Avenue, Ashok Nagar, Chennai 600 083, in TS.No.14, Block No.71, within the stipulated time to be fixed by this Court. For Petitioner : Mr.S.Sridhar For R1 : Mr.K.Raja Srinivas For R2 : Mr.S.Ramesh For R3 : Mr.V.C.Selvasekaran For R4 : Mr.V.Anandamoorthy For R5 : Mrs.M.E.Rani Selvam ORDER
[Order of the Court was made by M.SATHYANARAYANAN, J.] By consent, the writ petition itself is taken up for final disposal.
2 The present litigation is having a long and checkered history and it is not necessary to restate the facts once again for the reason that in the earlier round of litigation in WP.No.20591/2013, filed by the 2nd respondent herein, the facts leading to the series of litigations have been narrated in detail and in extenso.
3 The 2nd respondent herein, aggrieved by the dismissal of the appeal filed for regularisation of her construction under section 113-A[6] of the Town and Country Planning Act, 1971, [in short the Act], has filed the above said writ petition, in which the present writ petitioner is arrayed as the 5th respondent therein.
4 A Division Bench of this Court, after taking into consideration, the earlier round of litigations and orders passed thereon, has dismissed the writ petition vide order dated 12.02.2015, thereby, confirming the order of the Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai-9, dated 10.07.2013 in G.O.[3D] No.47, which in turn, confirmed the order of the 2nd respondent therein / 1st respondent herein dated 09.03.2011. The result of the writ petition is that the appeal, filed by the 2nd respondent herein / petitioner therein, challenging the rejection of her application under section 113-A[6] of the Act, got dismissed. However, the matter does not stop there for the reason that the Division Bench, while dismissing the writ petition, has indicated that the dismissal of the writ petition will not preclude the petitioner therein / 2nd respondent herein from approaching the Government / Competent Authority for claiming exemption in respect of the development of any building or any class of buildings developed on or before 01.07.2007 from all or any of the provisions of the Act.
5 It is relevant to extract paragraph No.62 of the said order:-
62 Under these circumstances, it is made clear that the dismissal of the present writ petition will not preclude the petitioner to approach the Government/Competent Authority in claiming exemption in respect of development of any building or class of buildings developed on or before 01.07.2007 from all or any of the provisions of this Act or any Rule or Regulation made thereunder etc., in terms of section 113 of the Act and to seek appropriate remedy in the manner known to law and in accordance with law, if she so desires/advised. Connected Miscellaneous Petitions are closed. 6 The petitioner herein, aggrieved by the liberty granted to the 2nd respondent herein in paragraph No.62 of the above said order, filed SLP [C] No.12428/2015 before the Hon'ble Supreme Court of India and it was dismissed on 01.05.2015 and the petitioner herein was granted liberty to make his objections in the event, an appropriate authority is approached by the 2nd respondent herein for regularisation of the construction and it is relevant to extract the said order:-
The Special Leave Petition is dismissed.
However, the petitioner is given liberty to make objections in the event an appropriate authority is approached by the respondent [s] for regularisation of construction. 7 It is also brought to the knowledge of this Court that the 2nd respondent herein has filed OS.No.4669/2015 on the file of the Court of VII Assistant Judge, City Civil Court, Chennai, against the petitioner herein and 7 others, praying for declaration that he is entitled to construction on the land described in Item No.2 of the Schedule Mentioned Property and marked as WXYZ in the Plan Annexed to the Plaint and to declare that Item No.3 of the Suit Schedule Property marked as EFGH in the Plan Annexed to the Plaint as a 20 feet common passage owned and common to the plaintiff and the defendants 1 to 5 exclusively meant for their usage and for other consequential reliefs and the 2nd respondent, pending disposal of the said suit, filed IA.No.12034/2015, praying for appointment of an Advocate Commissioner, to inspect the Schedule Mentioned Property and note down the physical features and measurements with the assistance of the Surveyor and it was ordered and the petitioner herein, aggrieved by the said order, filed a Civil Revision Petition in CRP [PD] No.1495/2016 on the file of this Court and it was entertained and pending disposal of the said revision, this Court has also granted interim stay of all further proceedings in respect of the order passed in IA.No.12034/2015 in OS.No.4669/2015 pending on the file of the Court of VII Assistant Judge, City Civil Court, Chennai, vide order dated 12.05.2016 and it is represented that the said Civil Revision Petition is still pending on the file of this Court.
8 The petitioner, now came forward to file the present writ petition, praying for issuance of a writ of mandamus or appropriate direction, in the nature of writ, to consider his representation dated 28.09.2015, and to direct the respondents to demolish the illegal and unauthorised construction of 2865 sq.ft. of building in the common area put up by the 2nd respondent at No.41/4, adjacent to Old Block No.42/1, LIG Block, Vaigai Colony, 11th Avenue, Ashok Nagar, Chennai 600 083, in TS.No.14, Block No.71, within the stipulated time.
9 The said writ petition was entertained on 18.01.2017 and insofar as the petition for interim direction sought for by the petitioner is concerned, the same was dismissed on 18.01.2017. The writ petition was listed before the Hon'ble Second Bench of this Court on 23.02.2017 and an order of Status Quo was granted for a period of three months and it is relevant to extract the said order:-
Heard the learned counsel for parties for some time.
2 It appears that the Division bench of this Court in WP.No.20591 of 2013, dated 12.02.2015, in paragraphs 61 and 62 observed that the State Government should take appropriate steps as per section 113[C] of the Tamil Nadu Town and Country Planning Act, 1971, and constitute a Committee for framing appropriate rules and guidelines for processing the application for regularisation of unauthorized constructions as per the permissible limit.
3 As per the said direction, a decision has to be taken by the Government to compound such unauthorized constructions in the permissible limit either by way of imposing penalty or ordering to set right the things to meet out the requirements of the Tamil Nadu Town and Country Planning Act, 1971.
4 The learned Additional Advocate General seeks some more time to look into this issue.
5 List this matter after three months. In the mean while, the Government ot take note of the observations made by the Division Bench of this Court in the aforesaid writ petition and do the needful in accordance with law. There shall be an order of status quo till then. 10 The petitioner, challenging the above said order, granting Status Quo, had approached the Hon'ble Supreme Court of India, by filing SLP [C] No.11733/2017 and the Hon'ble Apex Court, while dismissing the said Special Leave Petition on 21.04.2017, requested this Court, to expedite the hearing of the matter pending before it and render decision therein.
11 The learned counsel for the petitioner would vehemently contend that the 2nd respondent, without getting any permission, whatsoever, has encroached upon the common area and without any planning permissible, has put up a huge unauthorized construction, in the light of the fact that his earlier application for regularisation, filed under section 113-A[6] of the Act, came to be rejected by the 1st respondent herein, which was also confirmed by the Government in G.O.[3D] No.47, Housing and Urban Development Department, dated 10.07.2013 and prays that appropriate direction may be given to the official respondents to demolish the illegal and unauthorized construction put up by the 2nd respondent herein forthwith. Attention of this Court has also been drawn by the learned counsel for the petitioner to the orders passed in the earlier round of litigations by this Court as well as by the Hon'ble Supreme Court of India.
12 Per contra, the learned Standing counsel appearing for the 1st respondent / CMDA would submit that admittedly, a Division Bench of this Court, while dismissing WP.No.20591/2013, filed by the 2nd respondent herein, on 12.02.2015, has granted liberty to her in paragraph No.62 to approach the Government / competent authority for claiming exemption in respect of development of any building or class of buildings on or before 01.07.2007 and accordingly, the 2nd respondent has also filed an application under section 113 [C] of the Act read with G.O.Ms.Nos.110 and 111, Housing and Urban Development [UD-IV[3]] Department dated 22.06.2017, to the 5th respondent herein and it is pending. It is also brought to the knowledge of this Court by the learned Standing counsel appearing for the 1st respondent / CMDA that the vires of G.O.Ms.Nos.110 and 111, Housing and Urban Development [UD-IV[3]] Department, dated 22.06.2017, has been put to challenge in WP.No.23889/2017 and the Hon'ble First Bench of this Court has entertained the said writ petition and granted liberty to the Government to process the application ; however indicated that no final order shall be passed on the applications filed under the said Government Orders and it is the further submission of the learned Standing Counsel for the 1st respondent that the petitioner herein made a challenge to the order dated 12.02.2015 made in WP.No.20591/2013 by filing SLP[C] No.12428/2015 and the Apex Court, while dismissing the Special Leave Petition on 01.05.2015, granted liberty to the petitioner herein to raise his objection in the event, an appropriate authority is being approached by the respondents therein for regularisation of the construction and accordingly, as and when the application submitted by the 2nd respondent herein under section 113[C] read with G.O.Ms.Nos.110 and 111 dated 22.06.2017 is being processed, the petitioner will be heard and his objections, if any, will also be considered.
13 The learned counsel appearing for the 2nd respondent would submit that the 2nd respondent has also filed a comprehensive suit in OS.No.4669/2015 on the file of the Court of VII Assistant Judge, City Civil Court, Chennai, for declaration and other consequential reliefs and an interlocutory order for appointment of an Advocate Commissioner to inspect and note down the physical features of the property with the assistance of the Surveyor and the petitioner herein, challenging the legality of the said order, has approached this Court and filed CRP [PD] No.1495/2016 and the interim order has also been granted in his favour and as such, no further proceedings could take place in the said suit. It is also the submission of the learned counsel appearing for the 2nd respondent that in the light of the liberty granted to the petitioner to avail the remedy under section 113[C] of the Act, in WP.No.20591/2013, which has also been confirmed by the Apex Court in SLP [C] No.12428/2015, the present writ petition filed by the petitioner is nothing but an abuse of process of law and prays for dismissal of the writ petition.
14 The learned Standing counsel appearing for 4th respondent / Tamil Nadu Housing Board [TNHB] would submit that the communication dated 03.10.2016 has also been sent to the petitioner informing him that either the allottees or the subsequent purchasers cannot claim ownership right of the vacant land available in and around the block for their personal or exclusive use and he would further add that the comprehensive suit filed by the 2nd respondent herein in OS.No.4669/2015 is also penidng in which the present TNHB is arrayed as the 6th defendant.
15 The learned Standing counsel appearing for the Corporation of Chennai - 3rd respondent herein, would submit that the Corporation of Chennai is also arrayed as the 8th defendant in the said suit and subject to the result of the regularisation application submitted by the 2nd respondent, further action will follow.
16 The Court paid its best attention to the rival submissions and also perused the materials placed before it in the form of typed set of documents.
17 It is pertinent to point out at this juncture that though the writ petition filed by the 2nd respondent in WP.No.20591/2013 came to be dismissed on 12.02.2015, he was granted liberty to approach the Government or the competent authority for the purpose of claiming exemption in respect of the development of any building or class of buildings developed on or before 01.07.2007 and accordingly, the 2nd respondent herein has invoked section 113 [C] of the Tamil Nadu Town and Country Planning Act, 1971, and also filed an application for regularisation and it is pending on the file of the concerned Department of the Government of Tamil Nadu and however, the said application and other similar applications filed, could not be processed in the light of the interim orders passed by the Hon'ble First Bench of this Court in WP.No.23889/2017 dated 11.09.2017.
18 It is also brought to the knowledge of this Court that the 2nd respondent has also filed a comprehensive suit in OS.NO.4669/2015 which is pending on the file of the Court of VII Assistant Judge, City Civil Court, Chennai, and the 2nd respondent had the benefit of the order, appointing the Advocate Commissioner to note down the physical features ; but the said order has been stayed at the instance of the petitioner herein by filing CRP [PD] No.1495/2016 and as such, the suit also could not be proceeded with.
19 The primordial submission made by the learned counsel for the petitioner is that the 2nd respondent has encroached upon the common area and put up a huge unauthorized construction and pending his regularisation application, it should be duly put under the lock and aseal and apart from that, the said premises is being used as an Advocate office. In fact, the petitioner has made a challenge to the interim order of status quo passed in this writ petition on 23.02.2017 by filing SLP [C] No.11733/2017 and it was also dismissed by the Hon'ble Supreme Court of India on 21.04.2017.
20 In the light of the above facts and circumstances, the prayer sought for by the petitioner cannot be granted for the present. However, it is made clear that the 2nd respondent, till the disposal of the application for regularisation submitted by him under section 113[C] of the Town and Country Planning Act, 1971, by the Government, shall not alter the physical features of the superstructure in question and shall also not create any further third party rights in respect of the same.
21 In the result, the writ petition stands dismissed with the above observation. No costs.
[M.S.N., J.] [N.S.S., J.]
24.10.2017
Internet : Yes
AP
To
1 The Member Secretary
Chennai Metropolitan Development
Authority, Thalamuthu Natarajan Maligai,
No.1, Gandhi Irwin Road, Egmore,
Chennai 600 008.
2 The Commissioner
Corporation of Chennai, Rippon Building
Chennai 600 003.
3 The Managing Director
Tamil Nadu Housing Board
Nandanam, Chennai 600 035.
4 The Secretary
State of Tamil Nadu
Housing and Urban Development
Department, Fort St George
Chennai 600 009.
M.SATHYANARAYANAN, J.,
and
N.SESHASAYEE, J.,
AP
W.P.No.1160/2017
24.10.2017